Page:Harvard Law Review Volume 9.djvu/169

141 LAW OF SAFE-DEPOSIT COMPANIES, 141 session of others, it was levied upon under process against the owner. . . . We do not think that the mere levy of an execution or attachment upon the property by a creditor of the owner, while it is in possession of the tortfeasor, is available as a defence or in mitigation. It must be shown that the owner had the benefit of it in such a way as to operate in law as a restoration of the property. None of the authorities that have been brought to our attention maintain the proposition that to show a levy alone is sufficient ; and such a rule could not be supported in reason or justice." It is, therefore, clear that both the company and the officer are protected in all proceedings conducted regularly under valid process. The further exemption of the company itself from any liability arising under the acts of the officer, after proof of his authority, is rendered complete by a significant ruling of the court in United States V. Graffi By this the officers and representatives of the company are not allowed to be present at the time of the opening of the safe by the sheriff; whereby the sole responsibility of the latter for his own acts is of necessity recognized. As a result of this, it follows that the company may avail itself equally with him of any defences which the law provides for his protection. The plaintiff, in the case referred to, appealed from so much of an order made by the special term at Chambers as directed the exclusion of counsel and agents of each party at the time of open- ing the safe by the sheriff. The court in confirming the order ruled as follows : — " The portion of the order from which the plaintiff has appealed was clearly right. Without it the obligation would rest upon the officer to prevent the process he was required to execute from being converted into an instrument of investigation of the debtor's private papers. Such a use of it would be an abuse requiring the punishment of the officer permitting it to be done under color of process delivered for an entirely different and lawful purpose. The order did no more than declare the duty of the officer, as the law defined it. It was a very proper exercise of the discretion of the court." Whatever the results that the court thought it desirable to avoid thereby, it is clear that, with the exclusion of the representatives of the company, — particularly their exclusion in the character of unofficial witnesses merely, — all connection of the company with the property, in any capacity, was regarded as at an end from that time.